Summary
declining dismissal of the plaintiff's ECOA claim because the plaintiff argued for the benefit of equitable tolling
Summary of this case from Row v. CTX Mortg. Co.Opinion
Civil Action No. 04-3715.
January 21, 2005
MEMORANDUM
Plaintiff brings this action against defendants National City Mortgage Co. ("National City"), American Eagle Mortgage Co. ("American Eagle"), John Doe Trustee, John Doe Trust, and John Does #1-100. She alleges claims arising out of predatory lending practices of National City, the originator of her mortgage loan, and the other defendants. Before the court is the "renewed" motion of defendant National City to dismiss plaintiffs' amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
National City first moves to dismiss Counts I, II, III, and VI on the ground that they were not filed within the applicable statutes of limitations. As to Counts I, II, and III, plaintiff has argued for the benefit of equitable tolling. Whether the equitable tolling doctrine applies cannot be decided on the pleadings. See Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997). As to Count VI, plaintiff has claimed the discovery rule applies because the alleged fraudulent concealment of payments to American Eagle by National City could not have been revealed within the relevant time frame despite due diligence. This matter also will require further factual development. Thus, we cannot dismiss Count VI at this time. See In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir. 2002).
National City also seeks dismissal of Count III for violation of the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691e, on the basis that plaintiff accepted what it classifies as a "counteroffer of a loan." National City contends that a counteroffer is not an "adverse action" under ECOA and that therefore no notice is necessary where the counteroffer is accepted. Without deciding whether a counteroffer is an adverse action for the purposes of ECOA or whether the statute, 15 U.S.C. § 1691, and the regulation, 12 C.F.R. § 202.2, are consistent on that point, the record is simply not adequately developed to permit evaluation of defendant's contention that there was a counteroffer. Additionally, we note that 12 C.F.R. § 202.9(a)(1)(i) requires that "[a] creditor shall notify an applicant of action taken within . . . 30 days after receiving a completed application concerning the creditor's approval or,counteroffer to, or adverse action on the application," 12 C.F.R. § 202.9(a)(1)(i) (emphasis added), "not just the ultimate approval or denial of that counteroffer." Newton v. United Companies Fin. Corp., 24 F. Supp. 2d 444, 461-62 (E.D. Pa. 1998).
Finally, we will not dismiss Count VI claiming tortious interference with contractual relations because we cannot say beyond doubt "that the plaintiff can prove no set of facts in support of . . . [her] claim which would entitle . . . [her] to relief." In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d at 215.